Scott v Scott (No 2)

Case [2022] NSWSC 914


Supreme Court


New South Wales

Medium Neutral Citation: Scott v Scott (No 2) [2022] NSWSC 914
Hearing dates: On the papers; final evidence and written submissions 30 March 2022
Date of orders: 8 July 2022
Decision date: 08 July 2022
Jurisdiction:Equity
Before: Parker J
Decision:

See [118]

Catchwords:

COSTS – indemnity costs – offer of compromise – plaintiff’s offer – family provision proceedings – purported formal offer not specifying how proposed further provision to be borne by other beneficiaries’ shares of estate – whether effective – informal offers – whether failure to accept unreasonable

Legislation Cited:

Civil Procedure Act 1995, s 68

Probate and Administration Act 1898, s 150

Succession Act 2006, ss 59, 60, 65, 72, 99

Uniform Civil Procedure Rules 2005, rr 20.26, 20.27, 26.2, 42.14

Cases Cited:

AAI Ltd v Josipovic (No 2) [2013] NSWSC 1577

Alvarez v Matthews [2021] NSWSC 1551

Bates v Cooke (No 2) [2014] NSWSC 1322

Coote v Coote (No 2) [2021] NSWSC 461

Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542

Dibbs v Emirates(No 2) [2015] NSWSC 1786

Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

Estate of May Berry, deceased [2016] NSWSC 130

Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd (No 2) [2014] NSWCA 391

Megerditchian v Khatchadourian (No 2) [2020] NSWSC 11

Morrison v Abbott [2012] NSWSC 320

Pang v Fong (No 2) [2014] NSWSC 1924

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Rathswohl v Court (No 2) [2021] NSWSC 505

Sackelariou, Edward v O’Donnell [2018] NSWSC 1651

Scott v Scott [2021] NSWSC 1619

Smallacombe v Lockyer Investment Co Ltd (1993) 42 FCR 97

Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311

Vella v Vella (No 2) [2020] NSWSC 1032

Category:Costs
Parties: Coralynne April Scott (Plaintiff)
Charlene Arnel Scott (Defendant)
Representation:

Counsel:
AF Stevens (Plaintiff)
L Clarke (Defendant)

Solicitors:
Dignan & Hanrahan (Plaintiff)
Ray Wehbe & Co (Defendant)
File Number(s): 2020/215861
Publication restriction: Nil

Judgment

  1. These are family provision proceedings on which I delivered judgment in December last year: Scott v Scott [2021] NSWSC 1619. I found that the plaintiff’s application for further provision succeeded. I adjourned the proceedings to allow the parties to agree, if possible, on the form of orders to give effect to my judgment, and on costs.

  2. The parties later agreed on the form of the provision order to be made. Costs remain in dispute and are the subject of this judgment.

  3. The judgment assumes familiarity with my December judgment, to which I refer as “J1”. It also uses abbreviations used in the December judgment. In particular, the Succession Act 2006 is referred to as “the Act”.

  4. The successful plaintiff (“Coralynne”) seeks an order for indemnity costs in her favour. The application is based on several offers to compromise the proceedings, the earliest of which was made in November 2020.

  5. The unsuccessful defendant (“Charlene”) who is the deceased’s executor, contends that Coralynne should receive only an…

Continue reading Scott v Scott (No 2)

Sign in free to access the full text

Details
AGLC
Scott v Scott (No 2) [2022] NSWSC 914
Case
[2022] NSWSC 914
Decision Date

CaseChat Overview and Summary

The case involved Scott as the plaintiff and Scott as the defendant. The matter was heard in the Family Court of Australia, where the dispute pertained to family provision proceedings. The plaintiff sought additional provision from the estate of the deceased, arguing that the initial distribution was inadequate. The defendant argued that the provision made was just and equitable. A central issue in the case was whether the plaintiff's offer of compromise, which was informal and did not specify how additional provision would be met without reducing other beneficiaries' shares, was effective. Another issue was whether the defendant's failure to accept the plaintiff's offer of compromise was unreasonable.

The court considered the nature and requirements of offers of compromise in family provision cases. It noted that while an offer can be effective if it specifies how additional provision will be met, an informal offer that does not provide such details may still be considered. The court found that the plaintiff's offer, despite being informal, could still be effective because it demonstrated a willingness to negotiate and provided a basis for further discussion. The court also held that the defendant's refusal to accept the plaintiff's offer, without any reasonable justification, was unreasonable. This unreasonable refusal led to the award of indemnity costs against the defendant.

In conclusion, the court found that the plaintiff's informal offer of compromise was effective and that the defendant's failure to accept it was unreasonable. The court awarded indemnity costs to the plaintiff. This decision highlights the importance of clear communication and reasonable negotiation in family provision matters.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.